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Eight Ways Your Employee Social-Media Policy May Violate Federal Law

The lack of clarity in advertising law is frustrating, particularly in digital where we are relegated to extrapolating from laws that were often written before the computer was invented and which generally only apply to those using an abacus or, at least, a dial-up modem.

Social media adds another difficult wrinkle but every now and then a few morsels are dropped down from the heavens. Just last week the General Counsel of the National Labor Relations Board, Lafe Solomon, gave us direct guidance on how to write a legal social-media policy for our employees (thanks Lafe!). Unfortunately for us, it turns out that he thinks that most all of our current social media policies are illegal (thanks Lafe?). And while Lafe's views aren't necessarily the law, he is the General Counsel of the NLRB, and at the very least we should all probably scurry back to our current social media policies to see how they are impacted by his advice.

So what do we need to change? Well as a starting point, the NLRB hates those parts of your policy that are ambiguous and overbroad (yes, that 's you, everyone). I've seen enough policies to know that yours likely prohibits just about everything under the sun, so at the very least, make sure you add examples to clarify in the policy what's actually prohibited. As lawyers, we like to cover every contingency, but in truth, that 's just what the NLRB wants us to avoid here. So, rule #1, don't leave your employees guessing.

In that vein, the NLRB stressed that all employees have certain rights under federal law that a social media policies can't compromise. They noted that the ambiguity in most policies technically violates the law by potentially restricting these rights. So how do we avoid this? Well, Lafe has given us a few clear cut (kinda) examples:

Does your policy prohibit or restrict "friending" other employees? Workers have the right to communicate with each other. So a statement encouraging employees to "think carefully about 'friending' co-workers" was considered illegal.

Does your policy prohibit your employees from posting about the company? Under federal law, employees have the right to criticize their company and how it treats its workers (I am not recommending this!). So, a policy was deemed illegal that broadly stated that a company's employees couldn't talk about the company. Employees also have the right to discuss legal claims they may have against their employer. So a policy which simply stated that employees couldn't comment on legal matters was also illegal.

Does your policy prohibit talking about co-workers? Workers have the right to discuss wages and conditions of employment with others, and with each other, so a blanket prohibition over talking about co-workers was considered illegal.

Does your policy prohibit posting the company or other's trademarks, videos and pictures without permission? There very well may be instances where the use of an employer or third party's intellectual property would be a "fair use" and not an infringement. So the NLRB indicated that a provision completely prohibiting posting this kind of content on social media pages was deemed unlawful. In contrast, if a policy merely urges people to "respect third party intellectual property ", you'll likely be on the right side of the law.

Does your policy prohibit talking to the press? Employees have the right to talk to the press in certain labor disputes, so a blanket prohibition over talking to the media was considered illegal.

Does your policy prohibit talking in an indecent manner? An employee has the right to criticize their employers' labor policies and treatment of its employees, so a provision warning employees to "avoid harming the image and integrity of the company" was unlawful. That being said, a blanket prohibition on harassment and bullying was acceptable.

Does your policy prohibit talking about inflammatory topics? Employees have the right to talk in a "robust" manner about working conditions, so statements even just encouraging employees to "[a]dopt a friendly tone" in online discussions were deemed illegal, as they could be interpreted as prohibiting this kind of discussion.

Does your policy prohibit using social media while at work? The NLRB indicated that completely prohibiting employees from using social media with employer resources or on employer time was unlawful, because employees have the right to engage in certain activities on the employer's premises during non-work time and in non-work areas.

ABOUT THE AUTHOR

Brian Heidelberger
is partner and chair, Advertising, Marketing and Entertainment Law Practice of Winston & Strawn. He wrote this piece with the help of associate Monique Bhargava, and he tweets at @winstonadvlaw.